SCC rules: 'Mr. Big technique comes at a price'

The Supreme Court of Canada says there could be “significant problems” with so-called Mr. Big stings, and calls on police to put tighter controls on the investigative technique.

During such operations, undercover police officers recruit a suspect to a fake criminal organization in order to obtain a confession about a prior crime or crimes. The top court noted that the technique is a Canadian invention and has been used hundreds of times by forces across the country.

Thursday’s ruling centres on the case of a Newfoundland man, Nelson Hart, who was convicted of first-degree murder in the 2002 drowning of his twin daughters based on a confession obtained through a so-called Mr. Big sting.

An appeal court overturned Hart’s conviction by a 2-1 margin in 2007.

The Crown had asked the top court to overturn the appeal court’s ruling.

In a majority decision, the Supreme Court said Hart’s Charter rights may have been violated, that his confession “was not reliable,” and it could have been unfairly prejudicial to his trial.

Hart had told undercover officers how he pushed his daughters, Krista and Karen, into Gander Lake. At the time he told them of the crime, officers were simulating violence, including pretending to beat each other. In its ruling, the top court noted that context may have put Hart under duress and compelled him to make a false confession.

The court has left it to the Crown to decide whether to re-open its prosecution. However, Hart’s confession from the Mr. Big sting cannot be used in a new trial, the court ruled.

“As such, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict," Justice Michael Moldaver said in writing for the majority. "However, the final decision on how to proceed rests with the Crown."

The court did not call for an end to Mr. Big sting operations. However, it ruled that police must implement more stringent guidelines for their use.

"We must seek a legal framework that protects accused persons, and the justice system as a whole, against these dangers," the ruling said.

"Mr. Big operations are a creative and sometimes useful law enforcement technique, but the courts must carefully police their boundaries lest they stray from being useful strategies into ploys that allow the state to manipulate and destroy the lives of individuals who are presumed to be innocent," the court said.

In a statement issued later Thursday, the RCMP said it “respects” the decision, which it will take time to review to determine what impacts it may have on “operational protocols.”

Mr. Big sting operations have been used successfully to solve homicides, sexual assaults, arsons and kidnappings, the statement said, as well as in police anti-corruption cases.

“Today’s ruling also confirms that the use of undercover police investigations, among many investigative tools, remain an effective technique to protect the public,thwart the commission of serious crime and resolve historic offences. The major crime technique is used by police to uncover the truth, verify facts and determine if someone was involved in a serious crime.”

Significant impact for convicts

The ruling will have a significant impact on Canadian inmates convicted in trials that heard confessions made during Mr. Big sting operations.

The number of Canadians who have been convicted through Mr. Big stings is very small, says former Toronto homicide detective Mark Mendelson, but many of them will likely be “on the phone with their lawyers” after Thursday’s ruling.

Mendelson, who himself has played Mr. Big in a sting operation, said they “can be very effective.”

“It’s sort of a last resort in many cases because they take a long time to put together, they’re very expensive to run, and generally speaking evidence is available from other sources,” Mendelson told CTV News Channel.

Thursday’s ruling is not a significant blow to police, he said, because they will still be able to turn to such investigations when they need to. They will just have to modify their tactics.

But criminal defence lawyer Leo Adler said the rules have now been “loosened” for police as they try to build a case.

“Unfortunately, what the Supreme Court has said is that the Crown can have these confessions, these statements, ruled admissible on a preponderance of evidence, as opposed to the usual rule for confessions, which is that the Crown has to prove the confession to be admissible beyond a reasonable doubt,” Adler told CTV’s News Channel Thursday.

Adler said the ruling has created a “nebulous” type of standard for the police tactic, which he referred to as a “devastating” way of eliciting a confession from an accused.

Alder also said he believes juries will believe that if the suspect was willing to make such a confession, than it must be real, making it more difficult for the defence.